Regina v DALTON [2005] NSWSC 137

New South Wales Supreme Court

Regina v DALTON [2005] NSWSC 137 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 6,7, 8, 15 December 2004

JUDGMENT DATE : 15 December 2004

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

DECISION : Evidence admitted

CATCHWORDS : Incitement to murder - accused induced to speak to undercover police officer - whether officer guilty of offence by encouragbing offence - whether conversation inadmissible - discretionary considerations - applicability of Law Enforcement (Controlled Operations) Act 1997

Evidence Act 1995 s138 LEGISLATION CITED : Law Enforcement Controlled Operations Act 1997 s16

CASES CITED : Ridgeway v The Queen (1995) 184 CLR 19

Regina PARTIES : v Karen Ruth DALTON

FILE NUMBER(S) : SC 70016/04

T Hoyle SC (Crown) COUNSEL : C Bruce (Accused)

Peter Woods (DPP) SOLICITORS : Michael Dakin & Associates (Accused)

LOWER COURT JURISDICTION :

Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

LISMORE: WEDNESDAY 15 DECEMBER 2004

70016/04 - REGINA v KAREN RUTH DALTON

JUDGMENT

1 HIS HONOUR: When this trial came on for hearing counsel indicated that I should conduct a voir dire before empanelling the jury, first, because it would assist the efficient conduct of the trial to determine, if possible, the admissibility of a substantial part of the evidence proposed to be called by the Crown and, second, because the committal proceedings had been frustrated to some extent by the unavailability of a Crown witness, Mr Christopher Archer, and in fairness to the accused a so-called Basha (1989) 39 A Crim R 337 enquiry should be permitted in respect of his evidence and some connected matters. It seemed to me that both of these applications should be granted. 2 At the close of the voir dire I indicated that I considered that the evidence to which objection had been taken was in my view admissible but that in order to proceed with the trial I proposed to give my reasons later. These are those reasons. 3 It is necessary first to give a brief outline of the Crown case. This is sufficiently set out in the Crown case statement that was tendered without objection on the voir dire. In January 2001 Dennis James Dalton and Amy Jean Kyle were in a de facto relationship and were residing in Casino. Kyle had two children, one born in November 2001 and the other, Dalton's child, Campbell, who was born in January 2000. Dalton is the son of the accused, Karen Ruth Dalton, who is referred to in this judgment as "the accused". 4 On 17 January 2001 Dalton attended Casino Hospital with Campbell, who was then unconscious and died on the following day at Lismore Base Hospital to which he had been transferred. An investigation of the circumstances surrounding Campbell's death was commenced. 5 On 10 September 2002, Dalton was arrested and charged with Campbell's murder and, on 2 May 2003, the charge against him was set down for trial commencing 4 August 2003. In April 2003 Amy Kyle was arrested and charged with the manslaughter of Campbell and being an accessory after the fact to the infliction on him of grievous bodily harm by Dalton. She was granted bail. 6 The charges against Amy Kyle were listed for mention at Lismore Local Court on 22 July 2003. She had made a number of statements about Campbell's death and which implicated Dalton. It was expected that she would be called in Dalton's trial as a prosecution witness. 7 In early June 2003 police involved in the investigation of Campbell's death became aware that the accused was attempting to locate someone to murder Kyle. It was decided to use an under cover police officer to investigate this matter. At the trial of the accused the Crown proposed to call evidence of conversations between her and the person, Christopher Archer, who informed the police of the accused's proposal and the recordings made by the under cover officer, who was called Stewart, of his conversations with her. 8 Objection was taken to the admissibility of these conversations under s138 of the Evidence Act 1995. It was submitted by Mr Bruce of counsel for the accused that both Archer and Stewart and, for that matter, the investigating police officers, were themselves guilty of a criminal offence in encouraging the accused to incite Stewart to kill Amy Kyle and, as it developed, one Troy Scott, and that this was of such a character on Stewart's part as to amount to inappropriate pressure on or manipulation of the accused into committing the offences that the evidence was, in the result, obtained improperly or in contravention of an Australian law or in consequence of an impropriety within the meaning of s138(1). 9 Mr Bruce submitted that the evidence should not be admitted because the desirability of admitting it did not outweigh the undesirability of the admitting of evidence that was obtained in the alleged manner. He submitted that it was for the Crown to establish that the discretion should be exercised in favour of admission rather than the defence having the onus to do this. I am not certain that the submission as to onus is correct but in the circumstances it is unnecessary to determine the matter since I am quite satisfied that, if there were an onus on the Crown, it has more than satisfied that onus. The Crown submitted that neither Archer nor the police had committed any offence, nor were they involved in any impropriety that should lead to the exclusion of the evidence. It was agreed that the effect of exclusion would be that the Crown case must have failed. 10 The first witness for the Crown on the voir dire was Archer. At this time he was serving a twelve month sentence for assault. In February 2003 he went into custody in connection with some traffic matters and was at one stage in the Metropolitan Medical and Transit Centre, a part of the Long Bay prison complex. He shared a cell with Dalton whom he had met previously several times at Grafton. Not surprisingly, the two men got into conversation about the reason they were in gaol. Archer said that during these conversations Dalton had told him that he wanted to have Amy Kyle "out of the picture". 11 On 3 March 2003 Archer was released from custody in Lismore as part of the MERIT scheme and went to live in Ballina. By an arrangement earlier made with or through Dalton he was met on his release by the accused and a young man named Michael who was, Archer understood, an acquaintance of Dalton. Archer picked up a social security cheque for $200 and spent it on liquor which he took to the accused's house where he met members of her family and some friends. 12 During the course of the afternoon Archer and the accused talked about a number of personal matters including Amy Kyle. He had been drinking but thought he was not unduly affected. He said that the accused asked him if, "I knew of anyone that could arrange to have Amy Kyle removed from the scene" which he interpreted as "taken out". He said that he replied that he was not from this State and he didn't know anyone in the area but that he would look into it for her. He was at the accused's house for something over five hours in all and then went home. 13 In late March, despite his being on the MERIT scheme, Archer took a drug overdose and went into the Richmond Clinic in Lismore for about three weeks. He was then returned to gaol and transferred to Long Bay where he again shared a cell with Dalton. He discussed with Dalton his conversation with his mother. 14 On 12 June 2002, a day before an application for bail, Archer communicated with Detective Smith through his solicitor and disclosed what he knew about the Daltons' intentions. Not surprisingly, police supported his bail application and he was released. 15 In dealing with Archer's evidence I have borne in mind that he had a great deal to gain from being relied on by the police as an informant. He also has a criminal record involving significant dishonesty and his drug history also reflects adversely on his truthfulness. Not only that, he has had mental problems for many years, apparently connected with his use of illicit drugs, involving paranoia, hallucinations and delusions. His evidence is highly questionable for all these reasons and he cannot be believed as to any significant matter of fact unless it is corroborated. 16 It is obviously in part because of Archer's unreliability that the police decided to introduce an undercover operative for the purpose of ensuring that they had reliable evidence of any crimes that might be proposed by the accused. In the result, and because of the way in which the police controlled the investigation, Archer's role was no more than to introduce the accused to Stewart in a manner that would give her confidence that Stewart was trustworthy. 17 The first meeting between Stewart and the accused took place on 24 June 2003. They met outside the accused's house in the Lismore area and then travelled to Lismore where they talked in a restaurant. Archer was present in the vehicle at the initial stages but nothing of any significance occurred at that time. The conversations were tape recorded. 18 The important part of the conversation between Stewart and the accused occurred in the restaurant. Although the subject matter of the incitement was indirectly prompted by Stewart the accused volunteered why she wanted what she called "the job" done to Amy Kyle. It is quite clear that aside from finding someone to do the job (the accused's description of Archer' role) there was no suggestion by the accused that the instigation for the crime came from other than the accused and possibly her son. 19 The conversation is inconsistent with any suggestion that the proposal may have been instigated by Archer or, for that matter, by Stewart. The accused's language demonstrates that she had been considering the matter for some time. In this conversation the accused also stated that she wanted Troy Scott killed for the reason, essentially, that he was attempting to take his child from the accused's daughter. The accused wanted to have Scott killed first and explained why his case was more urgent. 20 There was a great deal of discussion about how the accused might raise Stewart's fee. She had been expecting, perhaps because of what Archer had said (and he may have got that sum from Dalton), that it would cost about $5,000. It was soon obvious that she was completely unable to pay such a sum. In the end it was agreed that she would attempt to obtain $500 as a deposit and pay the balance each fortnight. Stewart explained that he needed the money to follow Kyle to where she used to drink. Towards the end of the conversation the accused said, "I'm thinkin the way things are going" - that is, concerning the cost - "if you get rid of him first and put the other one on hold." 21 Stewart told the accused, in substance, that he would take care of things for her. She said, "Like I said, it'll take me some time to pay you off but I'll do it". The accused showed Stewart where Amy lived. When they returned to the accused's house she went inside and got photographs showing the intended victims and gave them to Stewart. The conversation finished with an agreement that the accused would contact Stewart when she had obtained the agreed deposit. 22 The Crown submits that the substance of this conversation amounted to the commission by the accused of an offence under s26 of the Crimes Act 1900 in that she solicited or encouraged or proposed to Stewart that he should murder Amy Kyle and Troy Scott. Subject to the possible significance of the financial arrangements which may have rendered the soliciting, encouraging or proposing conditional (a matter which it is unnecessary to consider in light of the guilty plea) the submission appears to be correct. 23 It is also submitted by the Crown that because Stewart had no intention of committing the proposed murders, he was guilty of no offence. This submission is plainly wrong. The crucial question is not whether he intended to commit the murders but whether he intended to encourage the accused to commit the s 26 offence of soliciting, encouraging or proposing murder. There can be no doubt that Stewart did so and that, accordingly, he is guilty as an accessory before the fact or a principal in the second degree (a distinction of no more than theoretical interest) in respect of that offence. 24 It may assist to see that this must be so if it is hypothesised that Stewart was proposing that another person, not him, should be the killer and the accused made the arrangement with that third person that, in the result, she actually made with Stewart. 25 It follows that the officers who had arranged that Stewart should act in this way were guilty of conspiring to have him commit this offence. 26 It is necessary, however, to note that both Stewart and the officers with whom he worked were under the same misapprehension as expressed in the Crown Prosecutor's submission. Furthermore, they had been wrongly advised by the Legal Services Branch within the Commissioner's office that they need have no concerns on this score. It is for this reason that it was not thought necessary to obtain authorisation under the Law Enforcement (Controlled Operations) Act 1997, which only applies (insofar as it may have been potentially relevant to this case) when some illegal or improper conduct on the part of the police is contemplated. I reject the submission of Mr Bruce that it applies even where such conduct is not contemplated. That there was no contumelious commission of a crime is a very relevant matter to which I will need to return. 27 It therefore appears that the power of the Court to refuse admission of the accused's incriminating conversations with Archer and Stewart has been enlivened. 28 Before returning to the considerations that affect the Court's exercise of its discretion it is necessary to briefly describe Stewart's ensuing conversations with the accused. 29 On 3 July 2003 Stewart called the accused's telephone number in Lismore but was told she had gone to Sydney. He left a message asking the accused to call him. On Saturday 5 July 2003 Stewart called the accused again and was given the same information. He again left a message for the accused to call him. Shortly after she did so. She was with her grandchildren at Mount Druitt railway station and told Stewart that she had been evicted from her accommodation. Stewart asked if she was in a position to give him some money as he intended to go up to the Lismore area in the ensuing week. She said that she should be able to after she returned to Lismore on Monday, suggesting that it might be Thursday or Friday. He asked her whether "you can guarantee me I'm not wasting my time though" to which she replied, "Yeah". 30 In this conversation Stewart was undoubtedly attempting to persuade the accused to commit herself to continuing their arrangement and to a time frame for the payment of the deposit of which they had spoken. However, the only uncertainty expressed by the accused was about whether she would have the money available. There was no hint that she had any hesitation about the fundamental character of her proposal. 31 On 10 July 2003 Stewart again called the accused at her home. She told him that she was going to call him later but she had not been sure when it would be because she was "waiting on money". She said that she had intended to send someone to draw it out of an ATM in a nearby shopping centre. Stewart suggested that she could meet him at some shops about thirty minutes walk away and that he would take her to the ATM. The accused agreed. They met in due course. The accused told Stewart that she had arranged for someone to collect the money but she had not yet received it. She said in answer to a query from Stewart that she had $60 to $70 on her. She asked him to "please fix him up first", a clear reference to Scott because "things are getting that bad that it looks like he's going to get residency" - meaning custody - "of bub". She said, "What I was gonna do is to give you this money now" - handing over $60 - "and give you a ring after I get the rest of the money and if you are in need of money that much and you get in first I'll be able to give you another hundred today or tomorrow." She gave him what she said might be a better photograph of Scott. 32 There was some further conversation in which Stewart said that he intended that night to go to some premises where the accused had told him Amy Kyle went to drink and said, in effect, that he might kill her "tonight". The accused did not directly respond to this suggestion, returning to the fact that Scott was about to go to Court for custody "so that's why I'm hoping you can get him first but I just think if he's out of the road, well, we won't have any problems there then where bubby's concerned". 33 The conversation ended with the accused saying that she was going to leave with the person who was getting cash from the ATM and would call Stewart when she had the money to arrange to meet. The accused was arrested shortly afterwards. 34 Mr Bruce for the accused submitted that it was impossible to know what Archer had told the accused, in particular whether it amounted, or might have amounted, to a serious impropriety which tainted the subsequent events. This submission was based essentially on Archer's unreliability. He had not put to Archer any matters that might have had the effect which he contended I should think was reasonably possible. Quite apart, however, from the speculative exploration that the submission invited, it seems clear to me from the way in which the accused spoke about the matter in the conversations with Stewart, that Archer played no role in persuading her to commit any offence except to the extent that he offered to look for someone who might be prepared to commit the murder she had in mind and in the result introduced Stewart as that person, whom she could trust. 35 Mr Bruce then submitted that the Court would regard as a serious impropriety the fact that the police, one way or another, were criminally implicated in the very crime for which the accused was charged. He submitted that they should have proceeded under the Law Enforcement (Controlled Operations) Act 1997 which contained a number of provisions designed to ensure proper supervision and accountability of investigations that involved or might involve illegal conduct. He submitted that this should have been done even if the police thought it was unnecessary because they did not think that they were undertaking any illegal or improper conduct. 36 I have concluded that the Act is concerned only with unlawful or corrupt conduct. This is made clear when the terms of ss16 to 19 are considered. There is also the obvious point that police investigations which do not involve illegal or corrupt or improper conduct do not need, in the public interest, any special governance requirements but can adequately be supervised by the machinery put in place by the Commissioner for that purpose. There is no suggestion here of any breach of what I might call conventional police procedure. 37 Lastly, Mr Bruce submits that the conduct of Archer and the subsequent behaviour of Stewart amounted to pressure or manipulation of the accused into committing crimes that she otherwise would or may not have undertaken. 38 I have carefully considered the recorded conversations both orally and in transcript. I can detect no such pressure or manipulation. It is true that there was a deal of bargaining about price and that, had Stewart insisted that his price was $5,000, he would not have been asked to undertake the proposed killings. However, the proposal put by the accused that suggested she might well pay less than or by other means that lump sum may well have been regarded by a jury as consistent with inciting him to kill the nominated victims. At all events, the mere putting of such proposals indicates to my mind that the accused regarded herself as a free agent in the negotiation and was not manipulated or pressured into committing the offences. It does seem, however, that the continued contact with Stewart at his instigation provided a time framework that might well have advanced things more quickly than otherwise, at least so far as Amy Kyle was concerned. The accused was always anxious to have Scott disposed of as soon as possible. 39 I have already mentioned the statutory test for admissibility of evidence that is tainted with the criminal or improper conduct of the police who obtained it. That test is not materially different from the common law, which may be most usefully found in Ridgeway v The Queen (1995) 184 CLR 19. The following passages of particular relevance in the present case are taken from the judgment of the Chief Justice and Deane and Dawson JJ – [At 31] "…The basis in principle of the discretion to exclude evidence unlawfully obtained lies in the inherent or implied powers of our courts to protect the integrity of their processes. In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of "high public policy" relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty. [At 36] In a context where ancillary offences - such as counselling, being knowingly concerned in, inducing, aiding, abetting and procuring – exist, in one form or another, in all Australian jurisdictions and where no laws exist authorising law enforcement officers to encourage or participate in the commission of criminal offences in order to enable the apprehension and procure the conviction of those whom they believe to be involved in criminal activity, it is likely that conduct which intentionally procures the commission of a criminal offence by another will itself be criminal. Nonetheless, circumstances can conceivably exist in which a law enforcement officer intentionally brings about the opportunity for the commission of a criminal offence by conduct which is not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with the powers of law enforcement… References in this judgment to an offence being "procured" by legal conduct on the part of law enforcement agents or officers are intended to refer to two distinct, but possibly overlapping, categories of case. The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare and exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence. The other category of case is where the illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence…" 40 That is not the case here. Section 138 of the Evidence Act 1995 sets out a number of specific considerations that a court may take into account in determining how to exercise the discretion to exclude illegally obtained evidence. It provides – "(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: